Lopez v. Exxon Mobil Development Co.

DAVID A. LOPEZ, Appellantv.EXXON MOBIL DEVELOPMENT COMPANY AND EXXON MOBIL CORPORATION, Appellees

On
Appeal from the 61st District Court Harris County, Texas
Trial Court Cause No. 2015-28744

Panel
consists of Justices Boyce, Donovan, and Jewell.

MEMORANDUMOPINION

Kevin
Jewell, Justice

In this
age discrimination and retaliation suit under the Texas
Commission on Human Rights Act ("TCHRA"), appellant
David Lopez claims his former employer terminated his
employment because of his age and because he engaged in
protected conduct by reporting discrimination. The trial
court granted summary judgment in the employer's favor.
Lopez argues on appeal that the summary judgment was improper
as to both claims. He also argues that some of the
employer's evidence was not timely authenticated and
should not be considered.

Assuming
Lopez met his prima facie burden of proof as to his age
discrimination claim, Lopez's evidence does not raise a
genuine issue of material fact that the employer's stated
nondiscriminatory reason for the termination was pretextual
or that age discrimination was a motivating factor in the
decision. As to the retaliation claim, and again assuming
Lopez met his prima facie burden of proof, his evidence does
not raise a genuine issue of material fact that but for his
complaint about perceived discrimination, the employer would
not have terminated him when it did. Accordingly, we affirm
the trial court's summary judgment.

Background

Lopez
was employed by Exxon Mobil Development Company from July
2002 to April 2014.[1] In July 2002, Lopez was over forty years
of age. He was fifty-six years of age when Exxon terminated
his employment on April 15, 2014. During his employment,
Lopez worked at various projects and locations throughout the
world primarily as a "business lead, " which is a
managerial position. Lopez also had experience as a senior
business manager, business manager, and project controls
manager.

Lopez's
claims at issue have their genesis in certain job assignments
and his supervisors' responses to his complaints about
those assignments. Specifically, in July 2012, Exxon
relocated Lopez to Canada to work as "Business Services
Lead for Emerging Projects." Lopez complained to
Exxon's human resources department about this assignment.
Lopez contends that there were no emerging projects on which
to work. Additionally, Lopez complained that he did not
receive a "housing waiver" in connection with the
assignment, which required his family to move from Texas to
Calgary. According to Exxon, an expatriate employee may elect
to retain a principal residence in his home country and waive
a housing spendable deduction, which is an amount deducted
from the employee's paycheck. In order to qualify for a
waiver, the employee's principal residence must be
located within fifty miles of his previous home country work
location. Exxon contends that Lopez falsely represented that
his principal residence was within fifty miles of his
previous home country work location, when in fact it was over
175 miles away. Therefore, Exxon rejected Lopez's request
for the waiver. Lopez believed he was entitled to the waiver
under Exxon policy.

In
September 2012, Lopez spoke with one of his senior
supervisors, Don Moe, about his Canadian job assignment and
Lopez's previous complaints to Exxon's human
resources department, which included complaints about the
housing waiver issue. In this meeting, Lopez contends, Moe
engaged in "provocative, intimidating, and
discriminatory verbal communications, " including
"unlawful ageist remarks and complaints." According
to Lopez, Moe stated that "the higher-ups" were
"very upset that an older guy like [Lopez] was
complaining about stuff; that [Lopez] should know better,
that [Lopez is] a senior guy; that maybe younger guys can get
away with complaining, but as far as [Moe] knew [Lopez] was
on nobody's fast track." Lopez also alleges that Moe
said that "older guys like [Lopez] should just shut up,
and . . . did not fit the mold." Lopez did not report
Moe's comments to human resources, or to any of his
superiors, at that time.

Approximately
six months later, in March 2013, Lopez approached his
functional supervisor, Irfan Khan, and for the first time
reported Moe's age-related comments. Lopez complained to
Khan of "discrimination relating to mobilization,
'Moe's verbal discrimination, ' and . . . other
issues in connection with his transfer to" Canada. Lopez
was upset that Exxon denied the housing waiver. Lopez
believed his Canadian work assignment was discrimination and
the company was trying to "get him to fail."
According to Lopez, Khan promised to look into Lopez's
complaints.[2]

Another
year passed and a manager on a different project asked Lopez
to work for him. That project was slated to start in March or
April 2014. In early April 2014, before moving to the new
project, Lopez asked Khan about the status of his
investigation into Lopez's March 2013 discrimination
complaints. As related by Lopez, Khan said that he had spoken
with Oswald Machado and Dave Kudlak, two of Lopez's
senior managers, and that Machado and Kudlak were
"annoyed about [Lopez's] persistence about the
complaints" and "specifically stated to Khan that
[Lopez] was 'old and stubborn.'"

Exxon
terminated Lopez's employment on April 15, 2014. Exxon
stated that it terminated Lopez due to consistently low
performance rankings. The undisputed evidence indicates that,
from 2009 to 2014, Lopez was ranked below at least 87% of his
peers. Lopez admitted in his deposition that, "[a]s far
as [he] [knew], [he] was always at the bottom" of the
annual employee ranking, "since as far as [he] can
remember."

Additionally,
in August 2013, Exxon stated in Lopez's annual evaluation
that Lopez had failed to develop or establish an estimating
organization, which is a personnel staffing task. Lopez
disputes that he was ever assigned to this task. As a result
of Lopez's unsatisfactory evaluation, and his overall
"relative performance deficiencies, " Exxon put
Lopez on a Personal Improvement Plan, or "PIP, "
which was to run from October 21, 2013, to April 15, 2014. In
a letter sent to Lopez, Exxon set forth performance
objectives for the PIP and identified minimum expectations
required for each area for improvement. According to the
record, the objective of a PIP is to provide an employee who
is not meeting performance expectations an opportunity to
improve both his absolute and relative performance.
Successful completion of a PIP requires the employee to not
only accomplish the objectives set forth in the PIP document,
but to also improve performance such that his relative
ranking is likely to improve in the next ranking cycle. Khan
testified that, while Lopez met the written objectives set
forth in the PIP, his performance had not improved enough to
increase his relative ranking.

Khan,
Machado, and Kudlak all participated in the termination
decision. Kudlak recommended Lopez's termination to John
Plugge, who made the ultimate decision. Moe left Exxon's
employ in November 2012 and was not involved in the
termination decision.

Lopez
sued Exxon, claiming age discrimination and retaliation in
violation of the TCHRA.[3] Lopez exhausted his administrative
remedies as to Exxon's decision to terminate his
employment, which is the only adverse employment action at
issue in this appeal.[4]

Exxon
filed a traditional motion for summary judgment on
Lopez's age discrimination and retaliation claims. As to
the age discrimination claim, Exxon conceded that Lopez could
meet his prima facie burden, but argued that no genuine issue
of material fact exists as to whether Exxon's stated
reason for Lopez's termination was pretext for
discrimination or whether Exxon's reason, even if true,
was only one reason and age discrimination was another
motivating factor. As to the retaliation claim, Exxon argued
that Lopez could not establish a prima facie case of
retaliation, or assuming Lopez could meet his prima facie
burden, his claim failed nonetheless because there is no
evidence that Lopez's protected conduct was the
"but-for" cause of Exxon's decision to
terminate his employment. After Lopez filed his response with
accompanying evidence, and Exxon filed its reply, the trial
court granted Exxon's motion without specifying the
grounds on which it ruled.

Lopez
now appeals the summary judgment as to the TCHRA claims,
contending that: (1) Exxon's documentary evidence should
not be considered on appeal because of Exxon's failure to
timely authenticate the evidence; (2) a genuine issue of
material fact exists as to whether Exxon's stated reason
for termination was a pretext for discrimination or that
discrimination was a motivating factor in the decision; and
(3) a genuine issue of material fact exists as to each of the
essential elements of Lopez's retaliation claim.

The
party moving for traditional summary judgment has the burden
to show that no genuine and material fact issue exists and
that it is entitled to judgment as a matter of law.
Tex.R.Civ.P. 166a(c). To be entitled to traditional summary
judgment, a defendant must conclusively negate at least one
essential element of each of the plaintiffs causes of action
or conclusively establish each element of an affirmative
defense. Am. Tobacco Co. v. Grinnell, 951 S.W.2d
420, 425 (Tex. 1997); Haven Chapel United Methodist
Church v. Leebron,496 S.W.3d 893, 899 (Tex.
App.-Houston [14th Dist] 2016, no pet.). Once the defendant
produces sufficient evidence to establish the right to
summary judgment, the burden shifts to the plaintiff to come
forward with competent controverting evidence raising a
genuine issue of material fact. Centeq Realty, Inc. v.
Siegler,899 S.W.2d 195, 197 (Tex. 1995); Haven
Chapel, 496 S.W.3d at 899. The evidence raises a genuine
issue of material fact if reasonable and fair-minded jurors
could differ in their conclusions in light of all of the
summary judgment evidence. Goodyear Tire & Rubber Co.
v. Mayes,236 S.W.3d 754, 755, 757 (Tex. 2007) (per
curiam).

Finally,
when, as here, the trial court grants a motion for summary
judgment without specifying the grounds, we will affirm the
trial court's judgment if any of the independent grounds
supporting the motion are meritorious. FM Props.
Operating Co. v. City of Austin,22 S.W.3d 868, 872-73
(Tex. 2000).

Statutory
Framework

Lopez
sued Exxon under the TCHRA. See Tex. Lab. Code
§§21.001 et seq. The TCHRA was enacted to,
inter alia, "provide for the execution of the
policies of Title VII of the Civil Rights Act of 1964 and its
subsequent amendments." Id. § 21.001(1).
Title VII is a federal law that prohibits employers from
discriminating against employees on the basis of sex, race,
color, national origin, and religion.[5]See 42 U.S.C.
§§ 2000e et seq. Although Texas courts
enforce the plain meaning of the TCHRA and binding Texas
precedent as to this statute's interpretation, when there
is no binding precedent, Texas courts also look to federal
law for guidance in situations like today's case, in
which the language of the TCHRA and the analogous federal
statute contain the same or substantially similar language.
See Tex. Lab. Code § 21.001; Prairie View
A&M Univ. v. Chatha,381 S.W.3d 500, 505 (Tex.
2012); Okpere v. Nat'l Oilwell Varco, L.P., __
S.W.3d __, 2017 WL 1086340, at *5 n.6 (Tex. App.-Houston
[14th Dist] 2017, pet. denied).

As
discussed in more detail below, the TCHRA prohibits employers
from, among other things, discharging an employee because of
age. Tex. Lab. Code §21.051. The TCHRA also prohibits
employers from retaliating against an employee who engages in
certain protected activities. Id. § 21.055.

Alternatively,
because direct evidence of discrimination or retaliation is a
"rarity" in employment cases, courts allow such
claims to proceed with indirect or circumstantial evidence of
discrimination or retaliation. Russo v. Smith Int'l,
Inc.,93 S.W.3d 428, 434 (Tex. App.-Houston [14th Dist.]
2002, pet. denied). Under this second method, Texas courts
follow the burden-shifting mechanism set forth by the Supreme
Court in McDonnell Douglas. See McDonnell Douglas Corp.
v. Green,411 U.S. 792, 802-05 (1973); Glover,
436 S.W.3d at 392. Under the McDonnell Douglas
framework, as applied to the TCHRA, the plaintiff is entitled
to a presumption of discrimination if he meets the
"minimal" initial burden of establishing a prima
facie case of discrimination or retaliation. Garcia,
372 S.W.3d at 634.[6] In the age discrimination context, for
example, a plaintiff may create an inference of impermissible
discrimination by presenting evidence that he was (1) a
member of the protected class (i.e., at least forty years
old), (2) qualified for the position, (3) terminated from
employment, and (4) replaced by someone outside the protected
class. See Kaplan v. City of Sugar Land, __ S.W.3d
__, 2017 WL 1287994, at *3 (Tex. App.-Houston [14th Dist.]
2017, no pet.) (citing Garcia, 372 S.W.3d at 632). A
plaintiff offering such evidence raises a presumption of
discrimination because the employer's challenged acts, if
otherwise unexplained, are more likely than not based on the
consideration of impermissible factors. See Garcia,
372 S.W.3d at 634. Once a plaintiff has established a prima
facie case of discrimination or retaliation, the burden
shifts to the defendant to produce evidence of a legitimate,
nondiscriminatory or nonretaliatory reason for the adverse
employment action. See M.D. Anderson Hosp. & Tumor
Inst. v. Willrich,28 S.W.3d 22, 24 (Tex. 2000) (per
curiam); Okpere, 2017 WL 1086340, at *2. If an
employer moving for summary judgment proves as a matter of
law a legitimate, nondiscriminatory or nonretaliatory reason
for the adverse employment action, the burden then shifts to
the employee to raise a genuine issue of material fact as to
whether the employer's reason was a pretext for
discrimination or retaliation. See Willrich, 28
S.W.3d at 24; Okpere, 2017 WL 1086340, at *2. As
explained in more detail below, the plaintiffs burden at the
third stage varies depending on whether the claim under
consideration is one for discrimination or retaliation.

Analysis

Though
Lopez challenges the trial court's summary judgment in a
single issue, we consider each of his two claims in turn,
after first addressing a preliminary evidentiary issue.

A.
Summary Judgment Evidence

In his
first argument, Lopez contends that Exxon failed to timely
authenticate the evidence it cited in its summary judgment
motion. Because the court could not consider that evidence,
Lopez argues the trial court should have denied Exxon's
motion. We agree that Exxon failed to timely authenticate the
evidence, but disagree that the failure compelled the trial
court to deny Exxon's motion.

Exxon
filed its motion and set the motion for hearing by submission
twenty-one days later. Exxon attached to its motion a number
of exhibits, consisting mainly of deposition excerpts and
business records, but did not timely authenticate the
business records. The day after filing its motion, Exxon
filed a "Supplement to Defendants' Motion for
Summary Judgment, " acknowledging the failure to include
a business records affidavit and attaching the affidavit to
the supplement. Lopez did not object to Exxon's
supplement or to the business records affidavit, but argues
on appeal that Exxon had the burden to file, and obtain a
ruling on, a motion for leave to file its affidavit
late.[7]

Under
the rules of civil procedure, a motion for summary judgment
and any supporting affidavits must be filed and served at
least twenty-one days prior to the hearing date. See
Tex. R. Civ. P. 166a(c). Thus, Exxon's business records
affidavit, filed twenty days prior to the submission date,
was untimely. Summary judgment evidence may be filed late,
but only with leave of court. Benchmark Bank v.
Crowder,919 S.W.2d 657, 663 (Tex. 1996). When, as here,
nothing appears in the record to indicate that the trial
court granted leave to file summary judgment evidence late,
we presume the trial court did not consider the untimely
business records affidavit. See id. (citing INA
v. Bryant,686 S.W.2d 614, 615 (Tex. 1985)); see
also Tex. Airfinance Corp. v. Lesikar,777 S.W.2d 559,
561 (Tex. App.- Houston [14th Dist] 1989, no writ) (stating
that appellate court must presume trial court did not
consider summary judgment movant's supplemental affidavit
filed twelve days before order granting summary judgment was
signed because affidavit was not timely filed and nothing in
record indicated trial court granted leave to file). Further,
although the business records themselves were timely filed,
Exxon did not authenticate them. Thus, we agree with Lopez
that we may not consider the unauthenticated business records
as part of the appellate record even though Lopez did not
expressly raise that objection in response to the summary
judgment motion. See Guerrero, 465 S.W.3d at 706-08.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;As
Exxon points out, however, Lopez cited in and attached to his
timely summary judgment response one of Exxon&#39;s exhibits
challenged on appeal-a copy of the PIP document. Accordingly,
there is no dispute that the PIP document is part of the
summary judgment record, and we may consider it. See
Wilson v. Burford,904 S.W.2d 628, 629 (Tex. 1995) (per
curiam) ("Rule 166a(c) plainly includes in the record
evidence attached either to the motion or to a
response."). Other than the PIP document, however, we
presume the trial court did not consider Exxon&#39;s untimely
authenticated evidence, and we exclude those exhibits from
our review. Benchmark Bank, 919 S.W.2d at 663;
Tex. Airfmance, 777 S.W.2d at 561. But we include
within our scope of review other timely and admissible
evidence ...

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